Chapter-11 Heydon's Rule Part-2

The classic statement of the Mischief Rule is that given by the Barons of the Court of Exchequer in Heydon's Case (l584) 3 Co. Rep. 7a; 76 E.R. 637:

It was there laid down:

"that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:-

lst. What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the common law did not provide.

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth.

And 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."

Later, in Coke's Institutes, we read to similar effect:

"Equity is a construction made by the judges, that cases out of the letter of a statute, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that the statute provideth; and the reason hereof is, for that the law-makers could not possibly set down all cases in express terms."

The approach in Heydon's case, emphasizing as it does the need to find the purpose or object or spirit of the statute and to advance that object in interpretation, nevertheless is expressed in the somewhat archaic language reflecting the view that statutes were a mere appendix to the common law. Today, the tables are reversed, and common law is increasingly being swallowed up by an orgy of legislation. Thus the modern rule in Heydon's case might be expressed better as to the first four points, this way:

1. What was the state of the law, if any, on the relevant subject matter before the legislation in question was passed?

2. What was the social, political, economic or other problem that gave rise to the need for the statute?

3. What was the solution that was to be embodied in the statute?

4. What was the purpose aimed at by this solution?

The mischief approach embodies a purposive interpretation of the text. Utilizing a much wider context for the text of the statute, we interpret the statute to advance the purpose. We all know that lawyers are "loophole hunters." The literal approach allows us to get around the purpose or spirit of the law by narrow construction. At other times, however, a plain reading may apply wider provisions of the statute to circumstances that arguably shouldn't be governed by the statute. The purposive approach would allow for a narrow reading of a wide provision, or a wider reading of a narrow provision, but only if the purpose of the statute demanded such a reading.

Chapter-11 Heydon's Rule Part-1

Heydon’d Rule[The Mischief rule Of Interpretation]

Later, in Coke's Institutes, we read to similar effect:

"Equity is a construction made by the judges, that cases out of the letter of a statute, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that the statute provideth; and the reason hereof is, for that the law-makers could not possibly set down all cases in express terms."

The approach in Heydon's case, emphasizing as it does the need to find the purpose or object or spirit of the statute and to advance that object in interpretation, nevertheless is expressed in the somewhat archaic language reflecting the view that statutes were a mere appendix to the common law. Today, the tables are reversed, and common law is increasingly being swallowed up by an orgy of legislation. Thus the modern rule in Heydon's case might be expressed better as to the first four points, this way:

1. What was the state of the law, if any, on the relevant subject matter before the legislation in question was passed?

2. What was the social, political, economic or other problem that gave rise to the need for the statute?

3. What was the solution that was to be embodied in the statute?

4. What was the purpose aimed at by this solution?

The mischief approach embodies a purposive interpretation of the text. Utilizing a much wider context for the text of the statute, we interpret the statute to advance the purpose. We all know that lawyers are "loophole hunters." The literal approach allows us to get around the purpose or spirit of the law by narrow construction. At other times, however, a plain reading may apply wider provisions of the statute to circumstances that arguably shouldn't be governed by the statute. The purposive approach would allow for a narrow reading of a wide provision, or a wider reading of a narrow provision, but only if the purpose of the statute demanded such a reading.

The mischief approach is a vast improvement over the literal and golden approach in that it acknowledges that we give meaning to words by supplying the context and that rules in statutory form are more than ends in themselves. Rules are a means to an end. However, the use of the purposive approach has difficulties associated with it.

Mischief Approach - "plain meaning" may be avoided in order to give effect to the purpose or object of the legislation - to suppress the mischief sought to be remedied by the statute and to advance the remedy.

This approach finds its historical roots way back prior to the formalist period, just as the more flexible conventions of precedent may be seen as being as much a return to the past as they are a modern phenomena.

Chapter-10 Criticism of Golden Rule Part-8

Critisism of Golden Rule

The Golden Approach can be criticized:

The United Kingdom Law Commissions commented in their report that:

“There is a tendency in our systems, less evident in some recent decisions of the courts but still perceptible, to over emphasise the literal meaning of a provision (i.e. the meaning in the light of its immediate and obvious context) at the expense of the meaning to be derived from other possible contexts; the latter include the ‘mischief’ or general legislative purpose, as well as any international obligation of the United Kingdom, which underlie the provision”.[1]

They also stated that to place undue emphasis on the literal meaning of words is to “assume an unattainable perfection in draftsmanship”.[2] This was written in 1969 and in the light of more recent judicial developments,[3] it seems that the courts have shifted somewhat from the literal approach. Zander[4] contends that:“The main principles of statutory interpretation-the literal rule, the golden rule and the mischief rule-are all called rules, but this is plainly a misnomer. They are not rules in any ordinary sense of the word since they all point to different solutions to the same problem. Nor is there any indication, either in the so-called rules or elsewhere, as to which to apply in any given situation. Each of them may be applied but need not be” Zander, in his more recent book,[5]criticised the golden rule for being silent as to how the court should proceed if it does find an unacceptable absurdity

1. It suffers from the same difficulties as the literal approach vis lack of wider contextual understandings of "meanings."

2. The idea of "absurdity" covers only a very few cases. Most cases involve situations where difficult choices have to be made between several fairly plausible arguments, not situations where the words lead to obvious absurdities.

3. The use of the "absurdity" safety valve can be very erratic as pointed out by Professor Willis in his famous article, "Statute Interpretation in a Nutshell" (l938) l6 C.B. Rev.l.

Willis at l3-l4:

What is an 'absurdity'? When is the result of a particular interpretation so 'absurd' that a court will feel justified in departing from a 'plain meaning'? There is the difficulty. 'Absurdity' is a concept no less vague and indefinite than plain meaning': you cannot reconcile the cases upon it. It is infinitely more susceptible to the influence of personal prejudice. The result is that in ultimate analysis the 'golden rule' does allow a court to make quite openly exceptions which are based not on the social policy behind the Act, not even on the total effect of the words used by the legislature, but purely on the social and political views of the men who happen to be sitting on the case ...

What use do the courts make of the 'golden rule' today? Again the answer is the same - they use it as a device to achieve a desired result, in this case as a very last resort and only after all less blatant methods have failed. In those rare cases where the words in question are (a) narrow and precise, and (b) too 'plain' to be judicially held not plain, and yet to hold them applicable would shock the court's sense of justice, the court will if it wishes to depart from their plain meaning, declare that to apply them literally to the facts of this case would result in an 'absurdity' of which the legislature could not be held guilty, and, invoking the 'golden rule,' will work out an implied exception.It was defined in Grey v. Pearson [6] "the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity"

· Luke v. I.R.C. 1963 - Lord Reid "It is only where the words are absolutely incapable of a construction that will accord with the apparent intention of the provision and will avoid a wholly unreasonable result that the words of the enactment must prevail."

· R. v. Allen 1872. It was held that bigamy meant go through ceremony even though the Act provided it was illegal to be married twice, even though the second marriage was void, so they had not literally broken the law.

· Re Sigsworth 1935, S murdered his mother and tried to claim his inheritance. There is a rule that no-one should profit from their wrong, this overruled a clear statutory right of a son to inherit on intestacy. Hence statutes may be modified on grounds of public policy, as one was in this case (the principle was an existing common law principle that would have applied had she had died having made a will). Although this a clear breach of the rule that clear and unambiguous words cannot be ignored, it surely accorded with Parliament's wishes.

· In Whiston v. Whiston 1995, public policy reasons prevented someone who had had a bigamous marriage (and was hence void), claiming money that they were clearly statutorily entitled to.

· If the words used are plain, unless the consequences are so absurd that Parliament must have made a drafting mistake" then the meaning must be used.

· Keene v. Muncaster 1980. In order to park in a certain way, permission was required from a policeman in uniform; the defendant was a policeman in uniform. It was held that permission had to be requested (i.e. from someone else).

· Adler v. George; it was an offence to obstruct the Forces "in the vicinity of", this was modified to avoid the absurdity of it not including "in", hence the Act as changed to "in or in the vicinity of"

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[1] “The Interpretation of Statutes”, (Law Com No 21) (Scot Law Com No 11), Report No 21, paragraph 80 (1969).

[2] At paragraph 30.

[3] Pepper v Hart [1992] 3 WLR 1032.

[4] The Law Making Process (2nd edition, 1985), 129.

[5] The Law Making Process (4th edition, 1994), 130.

[6] Grey v. Pearson (1857) 6 HL Cas 1,[ibid]

Chapter-10 part-7

The interpretation of the above would be simple,The second use of the rule is in a wider sense, to avoid a result that is against the principles of public policy. In Rex v. Sigsworth [1] the court decided that a son who had murdered his mother could not inherit her estate under the Administration of Estates Act (1925), even though there was only one literal interpretation of the word "issue" used..It can thus be employed if the conclusion leads to something whichis against the public policy or is opposed to the public policy and no farther..

"Golden Rule" approach alongwith "plain meaning" may be avoided only if necessary to avoid absurdity[2]. (Now the Golden Rule Approach is sometimes called the "liberal" approach as well. The case most often cited as authority is Grey v. Pearson [3](l857) where Lord Wensleydale stated that:

“... in construing statutes, and all…., the grammatical and ordinary sense of the words is to be adhered to, unless that leads to some absurdity, or some repugnance or inconsistency with the rest of the statute, in which case the grammatical and ordinary sense of the words may get modified, so as to avoid that absurdity ."[Extracted by the author]

The literal and the golden rule approaches are in close vicinity to one another.Must judges say that it is exactly like the literal approach, except when there is clearly a mistake in drafting, or there is an inconsistency with the plain meaning of the rest of the Act, then you can avoid it. The use of the phrase "grammatical and ordinary sense of the words" indicates that the Golden Rule is tied to the Literal Rule. The idea that words have plain meanings is still affirmed, but here, if you have a plain meaning that is absurd in the context of the rest of the Act, you may modify it. That is you may decide not to give the word a "plain meaning"; but rather give it a "secondary" meaning. The Plain meaning rule, also known as the literal rule, is a type of statutory construction which dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute. It underlies Textualism.

[1] Rex v. Sigsworth (1935; Ch 89)

[2]See: Grey v. Pearson (l857) 6 H.L.C. 6l, at l06, l0 E.R. l2l6, at l234 (H.L.)

[3] ibid[grey]

Chapter-10 Part-6

It would be more "golden" to interpret the Golden rule as including cases where you could interpret the statute so as to avoid absurdity of result in relationship to the perceived purpose of the legislation, not just absurdity in the sense that some internal disharmony in the text would occur by applying the "plain" meaning. Under the narrow view, even in Barcellona, the court could not apply the Golden Rule unless some other provisions in the Act dealing with limitation periods would be rendered inconsistent if you applied the plain meaning.

Professor Driedger, in his book The Construction of Statutes, l974 argues

... that the cases show that departures from the plain meaning under the "golden rule" are justified only when according that meaning produces some disharmony in relation to the rest of the statute or to related statutes; such departures are not justified, it is said, when the literal meaning merely produces consequences thought by the court to be absurd.

So the golden rule approach is merely a textual harmonization mechanism for the literal approach.

But, Professor Willis, and others, have pointed out that you will find cases, where the Judges do invoke the golden rule, because the result of the case, the consequences, are absurd in their opinion. Look at the case of Re Sigsworth[1] [l935] Chancery 89. The Act in question there was the l925 Administration of Estates Act S.46 which said that if a deceased person does not have a will, then the estate goes to his "next of kin." In this case the next of kin was the son who murdered his mother, and the mother's estate was in question. The Act said "next of kin," it did not say "except if the next of kin has murdered the deceased." But the court did not apply the plain meaning here, but rather implied that the statute included the exception. The court in effect interpreted "next of kin" not to include the "murderer."

So we can have what Driedger calls objective absurdity, that is, when there is inconsistency within the Act itself, or an obvious drafting error in the Act itself, and on the other hand, subjective absurdity, which is when the Judge looks at results in terms of the purpose of the Act as discovered by looking at wider contextual matters, and avoids a "plain meaning" due to the absurdity of the result. When the Judge looks at absurd consequences outside the plain meaning of the rest of the statute, then the golden rule is really closer to the mischief rule which we will look at in a minute.

An example of an obvious drafting error is the case of Sale v. Wills [2] Mr. Justice Riley of the Alberta Supreme Court trial division, said that it was obvious that the draftsmen had wrongly inserted the word "by" in an amendment to the Alberta Insurance Act. In the case, Riley cites 11 other Western Canadian cases in which courts have made corrections of an obvious misprint or error.

Driedger in his book, argues strongly against any "subjective" approach to the golden rule. He would confine the use of the approach to "objective" textual harmonization. This is understandable if you accept the view that the ascertainment of meaning in a text can by sharply distinguished from the assignment of meaning to a text, and that the "subjective" approach assigns rather than ascertains.

In order to park in a certain way, permission was required from a policeman in uniform; the defendant was a policeman in uniform. It was held” Permission had to be requested i.e. from someone else”[3].

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[1] Re Sigsworth[1] [l935] Chancery 89

[2] Sale v. Wills (l972) 22 D.L.R. (3d) 566

[3] Keene v Muncaster (1980) DC

[4] Maddox v Storer (1963) QBD

Chapter-10 Part-5

“that the golden rule of interpretation is that words should be read in their ordinary, natural and grammatical meaning subject to the rider that in construing words in a Constitution conferring legislative power the most liberal construction should be put upon the words so that they may have effect in their widest amplitude. This is subject to certain exceptions and a restricted meaning may be given to words if it is necessary to prevent a conflict between two exclusive entries.[1]”

Within the context of law, the Golden rule, also known as the British rule, means that the words of a statute should be understood in their ordinary sense.

"It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further[2]"

Meaning Of Golden Rule

The golden rule is an adaption of the plain meaning rule. It provides that wordings should be given their ordinary meaning as far as possible, but only to the extent that they do not produce an absurd or totally obnoxious result.

"… the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the statute[3] in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency [4]"

According to the plain meaning rule, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable.

Prof. Larry Solum's Legal Theory Lexicon expands on this premise:

Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type.

The case of Grey does not necessarily say that the Judge can decide differently because of a perceived absurdity in consequences. You must still stay within the four corners of the Act. For example, Lord Blackburn said in River Wier Commissioners v. Adamson[5] :

"But it is to be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to say is right, namely that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when supplied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear."

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[1] Constitutional Law of India by Seervai, the learned author has said in para 2.12 (3rd ed.)

[2] - Becke v Smith (1836) 2 M&W 195 per Parke B.

[3] the original word in the text is ‘instrument.’

[4] - Lord Wensleydale in Grey v. Pearson (1857; 6 HL CAS 61)

[5] River Wier Commissioners v. Adamson [l877] 2 A.C. 742 at 746:

Chapter-10 Golden Rule Part-4

That the application of this principle of construction has its limitations has become clear from a very recent decision of the Supreme Court of Canada[1]. That, of course, was a criminal case but, as will appear, the opinion of the majority on the point has general application. The Court had to interpret certain provisions of the Criminal Code [R.S.C., 1985, c. C-46] from which it was argued that those provisions could not mean what they said because the result would be absurd and Parliament could not have intended an absurd result. In rejecting this argument, the Chief Justice of Canada, speaking for the majority, stated at page 38:

‘Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis’.

From the above it is clear it does not require the input from any extrinsix source/extrinsic aid.

The classical statement of the “golden” rule was stated by Lord Wensleydale in Grey v Pearson;[2]:

“I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law ..., that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther”.

The golden rule [a canon of statutory construction] ... inclines us to avoid an interpretation of a statute to which an application of the plain meaning rule would otherwise lead us. We must presume that the legislature did not intend any interpretation of the statute that would lead to absurd or ridiculous consequences, no matter how 'plain' the meaning of a statute appears to be.[3]

In construing a statute, the intent of the legislature must be ascertained if possible, and, when once ascertained, will be given effect though it may not be consistent with the strict letter of the statute[4].

The golden rule is applied most frequently in a narrow sense where there is some ambiguity or asurdity in the words themselves. The second use of the golden rule is in a wider senseeven where words have only one meaning[5].But what, as sometimes, perhaps often, happens, if the meaning is not "plain" ? Well we turn to ... The Golden Rule, The Golden Rule so construes a statute as to avoid absurdity or anomalies by adopting a secondary (or less usual) meaning which is also linguistically possible in order to produce a reasonable result. Sometimes, a judge may read in words which he considers to be necessarily implied by words already in the statute. He may even, to a limited extent, alter or ignore statutory words for reconciling an unintelligible provision with the rest of the text (for example, judges have occasionally corrected an "and" in a statute when it meant "or"). "It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further[6]"

" we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance and to justify the court in putting on them some other signification, which though less proper, is one which the court thinks the words will bear[7]" These dicta bespeak a readiness on the part of some judges to go beyond or against the plain meaning and that seems to be inconsistent with the classical doctrine of Parliamentary Sovereignty[8].

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[1] R. v. McIntosh [[1995] S.C.J. No. 16 (QL)]

[2](1857) 6 HLC 61, 106.

[3] Statsky , page 81.

[4] People v. Minter (1946) 167 P.2d 11, 73

[5] In Re v. Sigsworth 1935 Ch 89 the court decided that a son who had murdered his mother could not inherit her estate under sec. 46 of the Administration of Estates Act 1925, even though there was only one literal interpreation of the word ‘issue’.

[6] [Becke v Smith (1836) 2 M&W 195 per Parke B].

[7] [River Weir Commissioners v Adamson (1877) 2 App Cas 743, 764-5 per Lord Blackburn]

[8] The golden rule is an adaption of the literal rule. It provides that words should be given their ordinary meaning as far as possible, but only to extend that they do not produce an absurd or totally obnoxious result:... the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in wich case the grammatical and ordinary sense of the words may be modified, so as to avoid that absordity or inconsistency, but not farther. (Lord Wensleydale in Grey v. Pearson (1857) 6 HL CAS 61) .